House of Lords Constitution Committee reports on Delegated Powers

By Mark Elliott and Stephen Tierney

The House of Lords Constitution Committee has today published a major report on delegated powers. It is a component of a larger, four-part inquiry that the Committee is undertaking into the legislative process. (The first report in this series, concerning the preparation of legislation for Parliament, was published in October 2017; reports on the passage of legislation through Parliament and post-legislative scrutiny will be published in due course.) In this post, we highlight key concerns raised and proposals made by the Committee in two principal areas: the ways in and extent to which legislative powers are delegated, and scrutiny of such powers’ exercise.

Delegation of power

The Constitution Committee, unsurprisingly, does not begin
from the unworldly premise that parliamentary delegations of law-making
authority are inherently problematic; after all, they are, and will remain, a
fact of life. The Committee does, however, adopt as its premise the position
that the legitimacy of such delegations is governed by “constitutional
standards” whose enforcement amounts to a “constitutional obligation” on
Parliament’s part.

The Committee goes on to articulate two key principles by
reference to which the legitimacy of delegations of power ought to be judged. First,
it is “essential that primary legislation is used to legislate for policy and
other major objectives”, with delegated legislation used only “to fill in the
details”. Against this background, the Committee laments the “upward trend in
the seeking of delegated powers in recent years”. Second, and relatedly, the
Committee states that it is “constitutionally objectionable for the Government
to seek delegated powers simply because substantive policy decisions have not
yet been taken” — a phenomenon in which there has been “a significant and
unwelcome increase”. Having thus nailed its colours to the mast, the Committee
goes on to identify a suite of constitutionally dubious trends and practices to
which its attention was drawn during the course of the inquiry and which it has
itself discerned in recent years through its constitutional scrutiny of all
Bills that reach the House of Lords.

Second, the issue of “skeleton bills” is flagged up. Lyingat the “extreme end of the spectrum of legislative uncertainty”, such Bills arecharacterised by “broad delegated powers [that] are sought to fill in policydetails at a later date”. The Constitution Committee points to the Agriculture Bill, which is currently beforeParliament, as a particularly egregious example, noting that the DelegatedPowers and Regulatory Reform Committee had reported on that Bill in excoriatingterms. Indeed, the DPPRC went as far as to state that “itcannot even be said that the devil is in the detail, because the [Agriculture] Billcontains so little detail”. The Constitution Committee concludes that skeletonbills “inhibit parliamentary scrutiny” and that it is “difficult to envisageany circumstances in which their use is acceptable”. If the Government doesseek to use such Bills, it must “provide an exceptional justification for them”and “cannot rely on generalised assertions of the need for flexibility orfuture‐proofing”.

Third, the Committee addresses Henry VIII clauses: that is, clauses
that authorise the making of delegated legislation that amends or repeals primary
legislation. Increasing recourse to Henry VIII powers is noted, the Data Protection Bill being cited as a
particular example. Repeating a view that it expressed in its report on the Public Bodies Bill, the Committee states
that Henry VIII clauses represent “a departure from constitutional principle” and
that such departures “should be contemplated only where a full and clear
explanation and justification is provided”. The Committee goes on to say that
such justification “should set out the specific purpose that the Henry VIII
power is designed to serve and how the power will be used”, concluding that: “Widely
drawn delegations of legislative authority cannot be justified solely by the
need for speed and flexibility.”

Fourth, a recent trend is noted concerning the interaction
of (on the one hand) legislative powers delegated to UK Ministers and (on the
other hand) the devolution settlements. For instance, as the Committee notes,
the Digital Economy Bill “included a Henry VIII
power that permitted primary and secondary legislation passed by the devolved
legislatures to be amended by secondary legislation passed by the UK Parliament
without the consent or involvement of the relevant devolved legislatures or
governments”. The Committee has flagged the same issue in its reports on
several other Bills, including the Space Industry Bill and the Sanctions and Anti‐Money Laundering Bill,
and in correspondence with the Government concerning the Telecommunications
Infrastructure (Relief from Non‐Domestic Rates) Bill.
The Committee concludes in its latest report that: “Where UK ministers seek a power
to amend devolved legislation, they must be subject to a statutory requirement
to consult the relevant devolved administration.”

Fifth, the Committee expresses concern about the use of
guidance (as distinct from delegated legislation) to fill in gaps in
legislation, particularly where such guidance relates to significant aspects of
the legislative scheme or represents the expression of a significant policy
choice. Here, the Committee relies on its recent report on the Counter‐Terrorism and Border Security Bill.
That Bill contains significant new powers to stop, search, question and detain
people on the grounds of “hostile activity”. However, the concept of hostile
activity is only vaguely and broadly defined in the Bill itself, while and the
Government sought to provide reassurance by stating that guidance would be
issued as to how the power would be exercised in practice. Noting that the
draft code of practice was not published until the committee stage in the Lords
was well underway, the Committee points out that “this meant that a crucial
supporting document was not available to the House of Commons for the entirety
of its consideration of the Bill” — a situation it considers to be “unacceptable”.
On this point, the Committee concludes that: “Guidance is not legislation and
should not be treated as such.” It follows that: “If there are policy lacunae
in the legislation itself, it is unacceptable that guidance, which for the most
part avoids parliamentary scrutiny, should serve to fill them.”

Scrutiny of delegated powers’ exercise

The Committee’s deep disquiet about the uses to which
delegated legislation is put makes parliamentary scrutiny and regulation of secondary
powers all the more salient. In addressing these questions, the Committee focuses
upon three issues: the complexity of existing procedures, the level of scrutiny
to which delegated legislation is subjected, and the relationship between
Parliament’s inability to amend statutory instruments on the one hand and the
nuclear option of rejection on the other.

The Committee expresses considerable concern with the multifarious,
and at times bewildering, range of scrutiny procedures that lie at Parliament’s
disposal, a complexity that grows as new forms of scrutiny emerge, often at the
initiative of government itself. The Committee concludes that this
proliferation adds unnecessary complexity. One recommendation is that the
Government use “an existing model of the enhanced affirmative procedure in any
future bill, when strengthened scrutiny is required, rather than creating a new
variation.”

A more significant concern for the Committee is the extentto which these powers are scrutinised at all. It notes that the overwhelmingweight of evidence received “was critical” about the scrutiny of secondary legislation. This failing was attributed by witnesses in particular to the House ofCommons which has no equivalent to the Secondary Legislation Scrutiny Committee(SLSC) of the Lords. The Constitution Committee praises the SLSC for performing“a vital role in scrutinising whether delegated powers are being used formatters of detail not policy.” The Lords Constitution Committee is however awarethat it is not its place, in constitutional terms, to make recommendations inrelation to the procedures of the other House. Instead, somewhatdiplomatically, it observes that: “The House of Lords undertaking importantscrutiny functions without duplicating the work of the Commons is a goodexample of the complementary roles of the two Houses.”

Having highlighted the gaps in scrutiny of delegated
legislation, the Committee turns to the power which Parliament has to regulate
its creation. It balances, on the one
hand, evidence from prominent witnesses, including Lord Hope of Craighead who suggested
that delegated legislation should be amendable, with, on the other,
submissions, including from the SLSC itself, that such a process would be
unworkable, largely due to the demands it would place upon parliamentary time. The
Committee also notes the submissions given by David Lidington for the
Government, seemingly with no hint of irony, that a power of amendment would
blur the distinction between the primary and secondary legislative processes.
In the end the Committee does not go so far as to propose the introduction of
an amendment process for draft delegated legislation, but it does take the
opportunity to emphasise that the lack of such a power “places a greater onus
on the Government to respond to the concerns raised by parliamentarians, and to
withdraw and re‐lay statutory instruments where appropriate.”

The Committee then turns to the only formal remedy available
to Parliament for deficient secondary legislation — rejection. It is remarkable
how rarely this option has been used: the Hansard Society has calculated that
Parliament has only rejected 16 SIs out of over 169,000 (0.01%) since 1950 — 11
by the House of Commons and five by the House of Lords.

In this context, the Committee discusses the controversy
surrounding the draft Tax Credits (Income Thresholds and Determination of
Rates) (Amendment) Regulations 2015 to which the Lords objected, prompting the Strathclyde review. The Committee reported on this review at the time and considered
that its focus upon the Salisbury-Addison convention, and the balance of power
between the two Houses of Parliament, was largely a distraction; the real issue
being the efficacy of scrutiny itself and how Parliament holds the Executive to
account.In its new report the
Committee maintains its robust view that the Lords must be entitled to reject
statutory instruments, particularly in light of current trends. If ministers
attempt to use statutory instruments to give effect to significant policy
decisions there needs to be proper oversight — and without a genuine risk of
defeat, and no amendment possible, “Parliament is doing little more than rubber‐stamping
the Government’s secondary legislation.” The Committee concludes bluntly: “This
is constitutionally unacceptable.”

Concluding remarks

The Committee’s report lays out detailed examples of the
ways in which Government now uses delegated powers to allow it not only to fill
in policy details but in fact to make and implement policy in the future; a
trend that is growing in legislation relating to Brexit. The Committee is blunt
in recognising that these trends, illustrated by the rise of skeleton bills and
the use of Henry VIII powers to create criminal offences and establish public
bodies, represent a shift, by stealth, in the balance of constitutional power
towards the executive: “it is unacceptable that the delegation of power is seen
by at least some in the Government as a matter of what powers they can get past
Parliament.”

The constitutional concerns which this raises are
exacerbated both by the limited scrutiny to which these powers are put and by
Parliament’s lack of ultimate control. On the former issue the Committee is
careful not to criticise the dearth of scrutiny to which delegated powers are
subjected in the Commons. A crucial point should, however, not be missed. The
chamber with greater democratic legitimacy should surely have a more robust
mechanism with which to review, bill by bill, the disturbing trend by which Parliament
effectively abdicates many of its law-making functions to the executive.

As to parliamentary control of delegated powers, while the Committee does not recommend the introduction of an amending power, it is aware that without such a power Parliament is left potentially emasculated by the use of SIs to give effect to policy initiatives. In this context all that is left to Parliament is the ultimate power of rejection. While noting the deferential approach which Parliament in general, and the Lords in particular, has hitherto adopted in relation to this nuclear option, the Committee’s warning is clear: “If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained.” Far from accepting the suggestion that the second chamber has no legitimacy to resist the misuse of delegated powers, the Committee strongly reasserts that the House of Lords has a constitutional duty to do so.

Mark Elliott is Professor of Public Law at the University of Cambridge and a Fellow of St Catharine’s College, Cambridge. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. They both serve as Legal Advisers to the House of Lords Constitution Committee. However, they have written this post in their purely personal capacities.

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